Is your business doing enough to ensure that it prevents harassment in the work, and the liability associated therewith?
IN RECENT YEARS, there has been an increasing realisation of the prevalence and the devastating effects of inappropriate workplace behaviour, especially sexual harassment, in both South Africa and in international jurisdictions. The “MeToo” campaign brought awareness to this pandemic, where shocking revelations were made, regarding a number of persons that were sexually harassed, especially by their employers or by persons in positions of power over them.
Workplace behaviour is the manner in which employees respond to specific circumstances or situations in the workplace. Whilst many elements determine an individual’s behaviour in the workplace, employees are shaped by their culture and by the organisation’s culture. Therefore, it is incumbent upon a company to ensure that its culture is a healthy one in which employees feel free, safe and protected so as to work effectively and efficiently.
Unwanted conduct in the workplace can take many forms, but the most popular include sexual harassment, workplace bullying and social media misconduct, all of which constitute a form of workplace discrimination, which can be in contravention of the Employment Equity Act.
SEXUAL HARASSMENT IN THE WORKPLACE
Sexual Harassment has been defined in the amended Code of Good Practice on the handling of Sexual Harassment cases as “Unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace…”
An example of sexual harassment, as determined in our courts recently, was where a senior employee subjected a female colleague to frequent sexual advances in the workplace. The senior employee frequently asked the female colleague to sleep with him in return for a promotion, and asked her to stay with him so that he could help with her expenses. Although she did not explicitly refuse the advances, the Labour Court of South Africa has confirmed that in any event this was in fact sexual harassment, and that it would not be condoned in the workplace, and in particular held that:
“Silence, no matter how prolonged it may be, as the Commissioner ought to have known, does not amount to consent. A ‘docile’ response to sustained sexual harassment cannot be equated to an invitation. There is nothing that was presented before the commissioner that indicated that the complainant ‘inspired” Pietersen to continue with his deplorable conduct, and clearly the commissioner misconceived the nature of the enquiry or went about the enquiry in the wrong manner”.
SOCIAL MEDIA MISCONDUCT
Enormous problems have also arisen in the workplace, with the prevalence of social media. For example, WhatsApp and Facebook communication has resulted in a number of employees finding themselves in extremely difficult situations, where they have been found to be in contravention of their employer’s social media policy and in worst-case scenarios have made racial or sexist comments. We all remember the story of the women who sent a personal WhatsApp message while on a Kulula flight. The message contained racial comments about the pilot. Even though there was no connection between the incident and her employer, the media coverage was enough to link her to her employer and her employer ultimately dismissed her.
Moreover, employees are casual about befriending and connecting with clients and colleagues on an array of social media platforms. Once befriended, they have access to often very personal information of the employee who may post anything on social media. The use of social media is increasingly conflating work life and private life. Although social media is an untapped source of business and marketing for companies, employees are the face and voice of a company and their comments and conduct on social media will inevitably be associated with the company and could possibly affect the company’s reputation. For example, often employees will post about their political beliefs or even go as far as making racial or sexist comments on their social media. Given the climate in which we currently live, an employer should not condone sexual and / or racial comments, especially, if one is able to link the individual who made the comment to their employer. It would be incumbent upon the employer to discipline such transgressor for this misconduct, which may ultimately result in his or her dismissal.
Additionally, it is often found that groups of employees or teams within a company form some sort of WhatsApp group that is intended for business purposes. However, over time, as barriers are blurred, these WhatsApp groups becomes a platform, where inappropriate jokes, normally of a sexual nature, are sent via this group. If it is found to be inappropriate or offensive to a particular person or group of persons it can have, devastating effects for the employee who sent the message and even for those who may have commented on the message who may as a result of such misconduct be dismissed from their employer.
In order to guard against the occurrence of the above, companies need to develop and instill Social Media Policies in the workplace so is to avoid situations where employees may cause reputational damage to its business. Furthermore, employees need to be trained on the implications of their conduct on social media, as they may not understand what they are doing and how it may negatively affect them and their employer.
What does all this mean for an employer in South Africa? An employer must ensure that there are competent policies against harassment in its organisations, which will inform and educate employees about sexual harassment and harassment generally, as it often tends to be veiled by other flattering gestures. The Employment Equity Act is the piece of legislation which sets outs practical details on handling sexual harassment, particularly in the Code of Good Practice and Handling of Sexual Harassment. This Code describes the various forms of sexual harassment and conduct which can constitute sexual harassment. Employers that do not ensure that their relevant policies address these aspects may be held liable for failure to take reasonable steps and to prevent sexual harassment, and face the prospect of punitive damages as a consequence.